Simard, George Public Enforcement Letter 90-8

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that you received a number of valuable free tickets to the U.S. Open Golf Tournament in June, 1988, and distributed the tickets to various criminal justice agencies and individuals in the greater Boston area. The results of our investigation (discussed below) indicate that the conflict of interest law may have been violated in this case. In view of certain mitigating circumstances (also discussed below), the Commission, however, does not feel that further proceedings are warranted. Rather, the Commission has determined that the public interest would be better served by bringing to your attention the facts revealed by our investigation and by explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of the law. By agreeing to this public letter as a final resolution of this matter, the Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission.

I. The Facts

1. At all relevant times you were the Brookline Police Chief and, as such, a “municipal employee” a defined in G.L. c. 268A, §l(g).

2. The 1988 U.S. Open Golf Tournament was held at The Country Club in Brookline (The Country Club) between June 2nd and 6, 1988.

3. Approximately two years before this event, the Country Club formed a U.S. Open Committee which engaged in planning for the 1988 U.S. Open. A subcommittee was responsible for public safety, traffic, parking, security, and law enforcement issues.

4. As the Brookline Police Chief, you were responsible for maintaining law, order, and overall security inside and outside The Country Club during the 1988 U.S. Open.

5. In late 1986 or early 1987, you appointed Brookline Police Captain Francis Hayes as the liaison officer between the Brookline Police Department and the U.S. Open Committee. You and Captain Hayes met with members of this committee in 1987 and 1988 and planned the security measures for the U.S. Open.

6. During early discussions with the U.S. Open Committee, it became clear that the committee was willing to provide you with a number of complimentary U.S. Open tickets for distribution to various law enforcement agencies. The evidence is inconclusive as to whether the committee offered you those tickets or you requested them. It is acknowledged that the U.S. Open Committee indicated that those types of tickets were distributed at other U.S. Open events.

7. During subsequent discussions, you and the applicable U.S. Open Sub-committee agreed that six uniformed police officers would work details inside The Country Club to establish a command post to maintain and provide security for the pro shop and post office during the U.S. Open; that 54 uniform police officers would control traffic outside The Country Club; and that Spectraguard, a private security firm, would be hired to provide security inside The Country Club. The town eventually billed The Country Club approximately $100,000 for the detail work. This fee included the standard 10% surcharge applicable to all police details provided by the Brookline Police Department.

8. The Brookline police who worked details inside The Country Club had access to it by virtue of their assignment inside. They did not need tickets.

9. Several days prior to the U.S. Open, a member of the U.S. Open Committee delivered approximately 40 to 60 sets of tickets to the 1988 U.S. Open to Captain Hayes at the Brookline Police Department. Each set contained seven tickets with individual face values between $18 and $20. The total value of a set of tickets was between $126 and $140.

10. You directed Captain Hayes to distribute one or more sets of tickets to various law enforcement officers and court personnel. Neither you nor Captain Hayes took any steps to ensure that the ultimate recipients of the tickets were trained law enforcement personnel, nor to coordinate the activities of those recipients with the police working details inside and outside The Country Club.

11. As a member of the Brookline Municipal Golf Course, you purchased eight sets of tickets to the 1988 U.S. Open for a total of $ 120. These tickets were distributed to your family and friends. None of the so­called complimentary tickets were distributed to any of your family or friends.

II. The Conflict of Interest Law

As the Brookline Police Chief, you are a municipal employee for the purposes of the conflict of interest law, G.L. c. 268A. Section 23(b)(3) prohibits a municipal employee from causing a reasonable person knowing all the facts to conclude that anyone can unduly enjoy his favor in the performance of his official duties. By accepting and distributing the aforementioned tickets, you engaged in conduct that arguably would cause a reasonable person knowing all of the facts to conclude that The Country Club could unduly enjoy your favor in the performance of your official duties. While we acknowledge that you do not entirely agree with our view of the evidence, we believe that such a conclusion would be supported by the facts that (1) the tickets appear to have been given as a goodwill gesture rather than serving a legitimate law enforcement purpose; (2) you were involved in numerous law enforcement issues of concern to The County Club at or about the time you accepted these tickets, including determining the numbers and hours of police details which cost The Country Club approximately $100,000; and (3) the manner in which you distributed those tickets did not ensure that trained law enforcement personnel would use them, or that the recipients’ activities would be coordinated with the police working details at The Country Club.[1]

We acknowledge that you did not personally use any of the tickets. We also acknowledge that when requested by The Country Club, you did not waive the detail charge fee. While these facts might dispel the appearance of favoritism in some minds, they are counter-balanced by your accepting and distributing a large number of tickets, with a significant dollar value, to agencies without taking any precautions to assure that the ultimate recipients of the tickets were in fact capable of responding to any law enforcement crises that may arise.

III. Disposition

Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding and future compliance with the conflict of interest law.[2] This matter is now closed. If you have any questions, please contact me at 727-0060.

[1] You maintain that you had town counsel’s advice and the approval of the Board of Selectmen before you accepted the aforementioned tickets. While both Town Counsel and the Chairman of the Board of Selectmen acknowledge that there may have been informal discussion of the matter, it is clear that any disclosure or request for advice by you was not in writing, as required under the conflict law.

[2] The Commission could have directed the staff to commence adjudicatory proceedings which, in appropriate circumstances, can impose fines of up to $2,000 for any violation. The Commission chose to resolve this matter with a Public Enforcement Letter because it appears that you did not seek nor receive any tickets for your own personal use, and that you were not aware that your receipt and distribution of the tickets could raise concerns under the conflict law.